Children love Halloween — it’s that perfect mix of scary and fun. This year, however, Halloween is much scarier than usual, and not in a good way.

The city of Chesapeake, Virginia, has a law on the books that makes it a crime for any child over 12 years old to go trick-or-treating — or participate in similar activities — and would punish those who violate the law with fines between $25 and $100, or by confinement in jail for up to six months. And trick-or-treating for all children, regardless of age, must cease by 8 p.m. Notably, Chesapeake is not alone in adopting such an ordinance; nine towns in Virginia, as well as Meridian, Miss.; Bishopville, S.C.; and Boonsboro, Md., have similar laws.

While Chesapeake police have stated they will not be broadly enforcing the law, they have indicated they have the discretion to punish children who they believe are behaving badly. Still, the law exposes several larger problems with our criminal justice system, most notably overcriminalization. The term “overcriminalization” can refer to two issues: the over-proliferation of laws on the books and the overuse of policing and punishment to respond to behaviors which the justice system is ill-suited to address. This law displays defects in both areas.

First, the law is unnecessary. The city’s website cites the kind of behavior local officials are trying to police — namely, taking pumpkins from porches and smashing them in the street. Yet our criminal laws already cover this kind of behavior — Virginia and other states have theft, vandalism, and disorderly conduct prohibitions already in place. By adding more ordinances to the books, we create redundancy. We also add to the existing avalanche of criminal laws in America, making it increasingly difficult for ordinary individuals to determine what behavior is criminal and what is not. Too many laws mean too little notice, and not knowing that a law exists is rarely a valid defense to criminal charges.

Recognizing the serious harms these laws can pose, some states have taken on the charge to rescind them. In 2014, for example, Minnesota called a special legislative “unsession” to prune its books of unnecessary laws — the result being that 1,175 laws were rescinded. But in most states and municipalities, thousands of these laws remain in force.

Second, criminal laws are a poor tool to use in response to teenage pranks. Even if an older child is engaged in trick-or-treating mayhem — often involving normal adolescent behavior that we all grow out of — it would be best to leave it to families and communities to respond. Social science research suggests that misbehaving can be a normal part of development. The preteen and adolescent stages are a complicated time when children explore, take risks, and assess who they are and how they want to behave. Even our nation’s highest court has recognized this reality, noting that youths are different from adults and therefore less culpable for their actions.

Overcriminalization is a particular problem in the youth justice system. In many states, children can still be jailed for “status offenses” — offenses that are only crimes because of the age of the offender. These laws encompass behaviors like truancy, curfew violations, and underage drinking. However, research shows that detaining children for these minor offenses is detrimental. Once incarcerated, not only are youth more likely to offend later in life, but “the very experience of being in court increases the likelihood that children will engage in future criminal activity.”

City officials in Chesapeake have indicated that they will not be strictly enforcing the letter of the law — that is, they will not be arresting all 12-year-olds who are trick-or-treating. Instead, they have made it clear that they will be exercising discretion and only penalizing those children who are behaving badly. But with the explicit indication that discretion will be used, it is worth asking: Who will get the benefit of the doubt?

Overcriminalization does not affect all of us equally. We know that we live in a society where justice is not equally meted out and that this inequity starts at an early age. Authorities often respond to the same misbehavior in different ways, depending on who is responding and how that person perceives the child. Research reveals that as early as age 10, black children are perceived to be older than their years and less “innocent” than white children. This translates into children of color being policed more frequently, and entering the justice system at a disproportionately higher rate, than their white counterparts. And once children land in the system, it becomes very difficult for them to get out.

When I was 12, I trick-or-treated with my sibling. Those last few years of celebrating Halloween as a preteen were bittersweet, as I could feel adolescence creeping up on me and tried to savor the last few experiences of childhood. The “adultification” of children has pervaded our society in so many ways. Shouldn’t we allow all children to be children as long as they can?

Image by Yanlev

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